the tenth amendment to the constitution

[yavoon]

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

whatever happened to that one? seems like if we hadn't trampled it into complete dust it'd be pretty useful right now.

[Crushaholic]

That's the most abused Amendment we have. We probably won't get back to that concept any time soon with the Democrats holding the purse strings...

[BroncoBuff]

You guys need to understand how the Constitution works. Your "readings" of the Tenth Amendment are not well-informed, to say the least. Just posting that Amendment, without understanding the Constitution itself, and what powers it "delegates" to the feds, is like setting 11 Russian guys loose on a football field with a football and expecting them to know how to play the game.

Let me be specific with a question to test you: "The powers not delegated to the United States by the Constitution." What powers, SPECIFICALLY, do you contend were not delegated to the federal govt by the Constitution?
Don't get too literal here, because the Constitution certainly doesn't.

[BroncoBuff]

Here's a good head-scratcher that most seat-of-the-pants Constitutinal "scholars" such as yourselves really should understand:

Where does Antonin Scalia stand on whether abortion should be legal?
The answer is - he has never publicly stated a position himself. Yet, he favors overturning 'Roe v. Wade.' ..... when you understand how these two points can co-exist, then we'll be making progress with your Constitutional education.





- BroncoBuff. Two-time recipient of AmJur Book Awards for Constitutional Law, Southwestern University School of Law SCALE program, 1991-93.

[Barry Ramey]

Yeah, no one comment on the Constitution until you go through broncobuff, the self-appointed expert. Sure, he comes off as an arrogant ass, but he knows his Constitution and will post his resume for you. Plus, as a typical lefty would do, they try to mangle what the Constitution is about and it's them that know what the founders meant, so don't go by the written word, go by what the founders were thinking, which they only know of course since they are the true "scholars." :rofl:

[alkemical]

You guys need to understand how the Constitution works. Your "readings" of the Tenth Amendment are not well-informed, to say the least. Just posting that Amendment, without understanding the Constitution itself, and what powers it "delegates" to the feds, is like setting 11 Russian guys loose on a football field with a football and expecting them to know how to play the game.

Let me be specific with a question to test you: "The powers not delegated to the United States by the Constitution." What powers, SPECIFICALLY, do you contend were not delegated to the federal govt by the Constitution?
Don't get too literal here, because the Constitution certainly doesn't.



The irs ;)

[Garcia Bronco]

Here's a good head-scratcher that most seat-of-the-pants Constitutinal "scholars" such as yourselves really should understand:

Where does Antonin Scalia stand on whether abortion should be legal?
The answer is - he has never publicly stated a position himself. Yet, he favors overturning 'Roe v. Wade.' ..... when you understand how these two points can co-exist, then we'll be making progress with your Constitutional education.





- BroncoBuff. Two-time recipient of AmJur Book Awards for Constitutional Law, Southwestern University School of Law SCALE program, 1991-93.

My question is...what in the constitution gives the federal government power to ban a substance even when a state votes to allow it?

[alkemical]

Here's a good head-scratcher that most seat-of-the-pants Constitutinal "scholars" such as yourselves really should understand:

Where does Antonin Scalia stand on whether abortion should be legal?
The answer is - he has never publicly stated a position himself. Yet, he favors overturning 'Roe v. Wade.' ..... when you understand how these two points can co-exist, then we'll be making progress with your Constitutional education.





- BroncoBuff. Two-time recipient of AmJur Book Awards for Constitutional Law, Southwestern University School of Law SCALE program, 1991-93.




Well, i can be "for" something personally, and yet against it on another level.

Like anarchy. I'm for anarchy, but realize that stoopid huemans aren't able to live that way as a whole.

I never got the whole abortion thing, and why it's such a big issue. If you aren't for abortion, then you shouldn't be for the death penalty. Either is a form of state sponsored murder if you believe in life and in a soul.

[Falconer]

I never got the whole abortion thing, and why it's such a big issue. If you aren't for abortion, then you shouldn't be for the death penalty. Either is a form of state sponsored murder if you believe in life and in a soul.

I have heard that arguement many times, but is the reverse of that also true then? If you are for legalized abortion, you should be for the death penalty.

[epicSocialism4tw]

I have heard that arguement many times, but is the reverse of that also true then? If you are for legalized abortion, you should be for the death penalty.


Really, one doesnt have a whole lot to do with the other. Many people view justice as "an eye for an eye". I dont personally, but there are people who do. A person who has been convicted of murder(s) leaves themself succeptible to falling under the punishment of that philosophy, which is death.

A child aborted has committed no crime, and has done nothing to deserve their punishment. The parent should be the person that accepts responsibility for that predicament, not the child, and certainly not by way of death.

[Rohirrim]

Here's a good head-scratcher that most seat-of-the-pants Constitutinal "scholars" such as yourselves really should understand:

Where does Antonin Scalia stand on whether abortion should be legal?
The answer is - he has never publicly stated a position himself. Yet, he favors overturning 'Roe v. Wade.' ..... when you understand how these two points can co-exist, then we'll be making progress with your Constitutional education.





- BroncoBuff. Two-time recipient of AmJur Book Awards for Constitutional Law, Southwestern University School of Law SCALE program, 1991-93.

Isn't his position that he doesn't buy the penumbra concept of an implicit right of privacy that also includes a woman's right to choose abortion?

[alkemical]

I have heard that arguement many times, but is the reverse of that also true then? If you are for legalized abortion, you should be for the death penalty.

That would make you consinstant, and not a hypocrite now wouldn't it. ;)

[alkemical]

Really, one doesnt have a whole lot to do with the other. Many people view justice as "an eye for an eye". I dont personally, but there are people who do. A person who has been convicted of murder(s) leaves themself succeptible to falling under the punishment of that philosophy, which is death.

A child aborted has committed no crime, and has done nothing to deserve their punishment. The parent should be the person that accepts responsibility for that predicament, not the child, and certainly not by way of death.

Murder = Murder

[enjolras]

My question is...what in the constitution gives the federal government power to ban a substance even when a state votes to allow it?

That would be the interstate commerce clause, which is BY FAR the most abused part of the constitution.

[enjolras]

Isn't his position that he doesn't buy the penumbra concept of an implicit right of privacy that also includes a woman's right to choose abortion?

I beleive that is the case, which is what makes him incredibly dangerous. For much of the religious right the real target is not Roe V. Wade, but rather Griswold v. Connecticut (which established the penumbra right to privacy in the first place). By overturning (or at least weakining) Griswold, it would allow a conservative government to regulate wonderful things like sodomy and sex toys (as Texas has attempted to do, for example).

[BroncoInferno]

I have heard that arguement many times, but is the reverse of that also true then? If you are for legalized abortion, you should be for the death penalty.

I think the difference is how one views the fetus. Most pro-choicers view the fetus as a potential human, just as a fertilized seed is a potential plant. From that viewpoint, nothing is being murdered in an abortion and therefore a pro-choice stance would not conflict with an anti-death penalty philosophy.

[Falconer]

I think the difference is how one views the fetus. Most pro-choicers view the fetus as a potential human, just as a fertilized seed is a potential plant. From that viewpoint, nothing is being murdered in an abortion and therefore a pro-choice stance would not conflict with an anti-death penalty philosophy.

If that is true then when does a potential human being turn into a human being, and what criteria are used to judge if that transition has been made?

[Crushaholic]

Murder = Murder

In one case, we have a fetus which may (or may not be) alive just guilty of trying to be born. In another case, we have a criminal who willingly chose to take the life of someone else. The two instances don't equate very well...

[BroncoInferno]

If that is true then when does a potential human being turn into a human being, and what criteria are used to judge if that transition has been made?

I wasn't attempting to get into all that...I was just addressing your point about reconciling having a pro-choice and anti-death penalty viewpoint. That's how the pro-choicer reconciles the two: he or she doesn't believe an abortion is murder (I know you don't agree with that).

On the other hand, it's a little bit tougher to reconcile a "pro-life" position with a pro-death penalty viewpoint, because the executed individual is agreed by all to be a human being who the so-called "pro-lifer" supports murdering.

[alkemical]

In one case, we have a fetus which may (or may not be) alive just guilty of trying to be born. In another case, we have a criminal who willingly chose to take the life of someone else. The two instances don't equate very well...

Sure they do. You just prefer to weight the cost of one soul over another.

That baby you (for sake of argument) - abort - could be the next Elway, Hitler, Buddah/Jesus, C. Manson, etc.

I come a POV that dictates life is life - I don't quantify who lives and who dies - that's not my job.

[W*GS]

What powers, SPECIFICALLY, do you contend were not delegated to the federal govt by the Constitution?

Everything that says "Congress shall make no law", for one set of powers that the federal government does not have.

[alkemical]

I'm really interested in this conversation/topic -

i may pose questions - i just am more curious right now.

[Falconer]

I wasn't attempting to get into all that...I was just addressing your point about reconciling having a pro-choice and anti-death penalty viewpoint. That's how the pro-choicer reconciles the two: he or she doesn't believe an abortion is murder (I know you don't agree with that).

On the other hand, it's a little bit tougher to reconcile a "pro-life" position with a pro-death penalty viewpoint, because the executed individual is agreed by all to be a human being who the so-called "pro-lifer" supports murdering.

I don't think it is any easier to reconcile than that of a pro-life position. There are two example of how a pro-life person reconciles the two just as easily as a pro-choice person probably does. The fact is every person will try to justify their position, because to admit that you could be inconsistent would call your scheme into question. This is a very unsettling condition that ultimately disturbs a person's natural balance and can also lead into finding yourself at odds with those people you choose to associate yourself with.

I find myself in that situation as we speak. I am pro-life and so is my wife. However, I am not sure how effective any sort of law would be against abortion. It might reduce the amount of abortions, but the outcome could end up being the same or worse. On the other hand my wife feels very strongly about the issue and we have had a couple of discussions about it. It's not that I am hung up on legislating morality, as every single law we have on the book is some kind of legislation on morality, it's just that I am not sure of the end result.

The same question comes up about homosexuality as well. I believe that it is a sin and it would be better for individuals not to practice it, but I am really leaning against there being any kind of law against it. Lord knows I sin pretty much everyday and my sin is no better or worse than homosexuality, therefore I find it wrong to set up laws against one form of sin and not the other 9,999,999... that we commit.


My hijack of this thread is now complete. ;D

[BroncoBuff]

Isn't his position that he doesn't buy the penumbra concept of an implicit right of privacy that also includes a woman's right to choose abortion?

Yes. But only to the extend that the penumbra is held to emanate from the Constitution.

There are basically 3 types of laws - Constitutional, common law (by judges, i.e negligence or prodicts liability), and legislative (statutes, codes, criminal).

If Congress or a state legislature decides that there should be a statute written to permit or deny abortion, that is Scalia's preferred resolution of the issue. He is fine (legally) with Congress or the States allowing or denying abortion all they want. He just doesn't think there is a Constitutional right to - or prohibition of -abortions (he thinks Constitutional law should be more narrow - basically only the EXACT WORDS written in it. This is called "strict interpretation.")

'Roe v. Wade' has a tortured past, from a Constitutional standpoint. Even pro-choice legal scholars generally admit that. A couple years before Roe, there was a SCOTUS case called 'Griswold vs. Connecticut,' where the state had prohibited some type of birth control. The Griswolds got busted for it somehow, and appealed all the way to SCOTUS. The Court might've said the law had no Constitutional issue - but the majority wanted to find a way to permit birth control, or at least strike down the CT code.

So, in a philisophically and flowery opinion by (the very colorful) William O. Douglas, they decided that there was a "penumbra of rights" not listed specifically, that "emanate" from the Constitution and Bill of Rights. One of those rights, they ruled, was "privacy." And this right to privacy was wide enough to include a couple's right to choose birtrh control without government interference.

In 'Roe v Wade,' Harry Blackmun and the Court used that right to privacy to cover a woman's right to abort, but only in the FIRST trimester. In the second and third trimesters, the right was not absolute.


More on gays later when I get time.

Thoughts?

[BroncoBuff]

And more on the Tenth Amendment later, too. If you're not a legal type, try to understand some of these distinctions listed, and it will help our talk about the Tenth Amendment.

[BroncoBuff]

As far as the Tenth Amendment, it has been rendered largely meaningless, but there are several reasons why perhaps that was the right thing to do.

Article One of the U.S. Constitution actually MANDATES that Congress make laws! The Constitution ORDERS that Congress make laws for many reasons, including to "promote the health and welfare of citizens," and to "regulate commerce between the several states."

So that's what the Constitution demands. And like I mentioned above, somebody has to decide exactly what the Constitution means when it's applied to various situations. Since 1803, that duty has been reserved for the Judicial Branch (although the current Commander in Chimp has been trying to usurp some of that purview.)

Like it or not, the Courts have long ruled that the "health and welfare" clause and most especially the "commerce clause," give BROAD latitude to Congress to make whatver laws they see fit to obey the Constitutional mandate that they legislate for the peoples' health and welfare and regulate commerce. This was all true even before the 1930s, when the SCOTUS ruled that they really, really grant Congress latitude to make laws.*

How's that for NOT being 'activist judges'? The irony is that the death of the Tenth Amendment was an exercise in IN-activist judicial conduct. (The irony being that the same people who decry the weak Tenth Amendment are often those who profess hatred for 'activist judges.' :~ohyah!:)


Don't get me wrong, there are several areas where state law trumps federal. Insurance, torts, and some criminal law. But if Congress wanted to override any of those laws (SF's medical marijuana law being a current example) it does so by invoking the "Supremacy Clause," a much more powerful part of the Constitution that is basically the opposite of the Tenth Amendment:"This Constitution, and the law of the United States which shall be made in Pursuance thereof ... shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."
When the feds want to use this Supremacy Clause (like with the San Fran medical marijuana law), it is very powerful, and the Tenth Amendment is just a p***Y.

So there you have it. Happy? :USA:


____________

* - In several 1930s cases during the depression and FDR's New Deal, the SCOTUS went even further: they decided that ANY LAW Congress made was okay by them. A couple years later, in a humble footnote in 'U.S. v. Carolene Products,' the Court backpedaled in one important area - saying that laws pertaining to PERSONAL and INDIVIDUAL rights would still be scrutinized very closely by the judiciary. But all laws pertaining to PROPERTY and ECONOMIC rights were ceded in full to Congress and the state legislatures.

My footnote here is added only to hammer home the reality that Congress can make just about any law it want to make, and SCOTUS will let it stand. Add to that the Supremacy Clause, and Congress has a blank check - the only regulation being presidential veto power. Ironically, this is what the founding fathers wanted - democratically elected judicial houses to debate and make laws. The founding fathers were very wary of the executive. And that's not (just) anti-Bush

[BroncoBuff]

The feds can bypass the remnants of the Tenth Amendment in many, many ways. For example, if Montana or Wyoming want to set their road speed limits at 80 MPH (roads being a state purview), they can do it. However, Congress and the Executive (Transportation Dept) just pull the plug on paying for their highways! :~ohyah!:

There's more than one way to skin a Tenth Amendment!

But more on §pider's livelihood - you should see the Code of Federal Regulations (CFRs) pertaining to truckers. There's a lotta pages there peratining to rigs, trucks, etc .... more than you can imagine. But you gotta agree that it would suck to have 50 different sets of laws there.

[BroncoBuff]

Everything that says "Congress shall make no law", for one set of powers that the federal government does not have.

Well, yeah. That's the easy part - that's Bill of Rights language, and that's still sacrosanct. In the post above, the "Individual and Personal Rights" are largely those included in the first 14 Amendments (BOR is the first 10, but the next 4 are also very imp).

But no Tenth Amendment advocate has a problem with this! They have always complied with this, until just last month when McCain's lust for power prompted him to sell his soul, and hammer through the "Terrorist Detainee Bill."

It is so unconstitutional, that "even some lawmakers who voted for the legislation questioned its constitutionality." - San Jose Mercury News (http://www.mercurynews.com/mld/mercurynews/news/politics/15782220.htm)

[Bronco_Beerslug]

Yeah, no one comment on the Constitution until you go through broncobuff, the self-appointed expert. Sure, he comes off as an arrogant ass, but he knows his Constitution and will post his resume for you. Plus, as a typical lefty would do, they try to mangle what the Constitution is about and it's them that know what the founders meant, so don't go by the written word, go by what the founders were thinking, which they only know of course since they are the true "scholars." :rofl:
Translated: "I actually have no idea what BB just said so I'm throwing my usual sh*t at the wall and seeing if it'll stick".

[BroncoBuff]

Yeah, no one comment on the Constitution until you go through broncobuff, the self-appointed expert. Sure, he comes off as an arrogant ass, but he knows his Constitution and will post his resume for you. Plus, as a typical lefty would do, they try to mangle what the Constitution is about and it's them that know what the founders meant, so don't go by the written word, go by what the founders were thinking, which they only know of course since they are the true "scholars." :rofl:

Well, you might have a point in that my wording sounds kinda preachy - sorry for that. But I do know this subject. There are a great many subjects I freely profess no special knowledge of, but I do know this topic pretty well.

And the odd liberal interjections I make are certainly not hidden ("commander in chimp," "sold his soul," are pretty obvious). But the building blocks I've described are apolitical.

I asked SoCalBronco, another lawyer and I think a Republican, to review my posts for accuracy. He should weigh in today or Thursday.


___

*EDIT* enjolras and Rohirrim also seem to have excellent knowledge here - guys, let me and Barry know if I've strayed from reality here.

[Rohirrim]

I think the Right should also realize that the whole foundation of our Republic depends upon some extremely "liberal" ideas. In fact, the ideas our government is based on are downright revolutionary.

[W*GS]

Well, yeah. That's the easy part - that's Bill of Rights language, and that's still sacrosanct.

Well, no.

[W*GS]

I think the Right should also realize that the whole foundation of our Republic depends upon some extremely "liberal" ideas. In fact, the ideas our government is based on are downright revolutionary.

The Left could use a refresher on our Constitution as well.

[alkemical]

I think the Right should also realize that the whole foundation of our Republic depends upon some extremely "liberal" ideas. In fact, the ideas our government is based on are downright revolutionary.

That's what i don't understand. If you wanted to truely be conservative and hold the values of this nation dear, i.e. what the constitution stands for - then see how brilliant the words are on this piece of paper that simply exaults civilization into a new age - You'd have to be able to see through the BS that men speak whom hold power.

[Bronco_Beerslug]

Well, no.Why? One particular amendment you're talking about or the whole thing?

[Rohirrim]

The Left could use a refresher on our Constitution as well.

Talk about your one-trick-pony.

[W*GS]

Why? One particular amendment you're talking about or the whole thing?

Look over your BoR and tell me that it's "sacrosanct".

[W*GS]

Talk about your one-trick-pony.

Your problem is that you think all problems rise from the Right.

There's your one track mind at "work"...

[Bronco_Beerslug]

Look over your BoR and tell me that it's "sacrosanct".I have "looked over your BoR" you tell me what isn't.

[W*GS]

I have "looked over your BoR" you tell what isn't.

Amendments 1, 2, 4, 5, 8, 9, and 10. For starters.

[BroncoBuff]

Look over your BoR and tell me that it's "sacrosanct".

Individual Rights - especially those in the first 14 amendments - are STILL absolutely sacrosanct! (again, with the exception of the recently passed "Terrorist Detainee" bill, which, according to the SJ Merc-News link I posted above, even the Senators who voted for it doubt the constiitutionality of.)

It should be noted, though, that the Tenth Amendment confers no individual rights, and therefore is not a "sacrosanct" amendment. But I think I made that clear.

[BroncoBuff]

Amendments 1, 2, 4, 5, 8, 9, and 10. For starters.

Whoa there, Cowboy .... 1,2,4,5,6,8,12,13,14 are all STRICTLY maintained by the current judiciary. What makes you think otherwise? I'm serious, I don't think you fully appreciate how wrong your statement is.

All those rights - speech, religion, speedy trial, compel witnesses, jury of peers, cruel and unusual punishment, ban on involuntary servitude, all forms of procedural due process ... all these and many others therein are all quite healthy. (again, with the recent xeception of the 'Terrorist Detainee' bill).

[Bronco_Beerslug]

Amendments 1, 2, 4, 5, 8, 9, and 10. For starters.
;D You are one depressed individual! I didn't realize how bad this last election has pushed you over to the edge until now. Yeah, the courts are trampling all of our rights these days since Democrats have gained majorities in Congress, what rights they haven't tainted the Republicans have sh*t on. Our BoR's are meaningless and the Constitution is just so much paper to wipe everyone's ass that isn't a Libertarian. !Booya!

[W*GS]

Whoa there, Cowboy .... 1,2,4,5,6,8,12,13,14 are all STRICTLY maintained by the current judiciary. What makes you think otherwise? I'm serious, I don't think you fully appreciate how wrong your statement is.

1st: Why does the FCC restrict content on radio and TV and fine those responsible for violations of its regulations? What does "no law" mean?

2nd: Why is the RKBA contingent by State approval?

4th: How come our phone calls can be tapped without our knowledge, the only restriction being an appeal to a secret court?

5th: How come one can be taken to trial, for the same incident, on federal charges if one has been cleared of other charges at lower levels? I'm thinking here of the feds stepping in with "violation of civil rights" cases when some folks aren't happy when the defendant has been acquitted by a state. Also, the evisceration of property rights - Kelso v. something, IIRC.

8th: The continued use of capital punishment.

9th: Basically, that rights not mentioned in the USC are ignored.

All those rights - speech, religion, speedy trial, compel witnesses, jury of peers, cruel and unusual punishment, ban on involuntary servitude, all forms of procedural due process ... all these and many others therein are all quite healthy. (again, with the recent xeception of the 'Terrorist Detainee' bill).

I disagree.

[W*GS]

Yeah, the courts are trampling all of our rights these days since Democrats have gained majorities in Congress, what rights they haven't tainted the Republicans have sh*t on.

This isn't a new thing - and if you think your beloved Dems are going to change it, you're pathetically mistaken.

Our BoR's are meaningless and the Constitution is just so much paper to wipe everyone's ass that isn't a Libertarian.

Not quite. The USC has been treated as butt wipe for a loooong time - and all of us, libertarians and otherwise, are being victimized.

[Rohirrim]

This isn't a new thing - and if you think your beloved Dems are going to change it, you're pathetically mistaken.



Not quite. The USC has been treated as butt wipe for a loooong time - and all of us, libertarians and otherwise, are being victimized.

Damn! If only the libertarians were in charge. Then, the world would be perfect and we'd all be sh****** roses.

[W*GS]

Damn! If only the libertarians were in charge. Then, the world would be perfect and we'd all be sh****** roses.

Two problems.

Libertarianism doesn't profess perfection. We'll leave that to the Utopians, statists and otherwise.

And "in charge" belies a great deal. Does the State have to be "in charge" of so many things? As a lefty, you concede that there are areas where the State has no business; right-wingers concede other areas as well. Why not be consistent?

[Rohirrim]

Two problems.

Libertarianism doesn't profess perfection.

That's not the way you make it sound.



We'll leave that to the Utopians, statists and otherwise.

And "in charge" belies a great deal. Does the State have to be "in charge" of so many things? As a lefty, you concede that there are areas where the State has no business; right-wingers concede other areas as well. Why not be consistent?

Now we're parsing language? Let's leave that to prosecutors and grammarians.

[W*GS]

That's not the way you make it sound.

That's more a matter of your interpretation. You're still stuck on the notion that Utopia is attainable, which isn't surprising, considering how that belief is one of the central tenets of the Left.

Now we're parsing language? Let's leave that to prosecutors and grammarians.

I merely find it interesting that you, and so many others, demand to be led.

Why?

[Rohirrim]

That's more a matter of your interpretation. You're still stuck on the notion that Utopia is attainable, which isn't surprising, considering how that belief is one of the central tenets of the Left.

Actually, as an even casual reader of my posts would have been able to ascertain, I believe exactly the opposite. Like so many on this board have pointed out to you in the past, it is you who hides on the political sidelines, perpetually acting out of your mythology of supremacy based on an untested philosophy. It's so easy to claim your fighter is the best when he never has to step into the ring.



I merely find it interesting that you, and so many others, demand to be led.

Why?

Now you're just being an ahole.

[W*GS]

Actually, as an even casual reader of my posts would have been able to ascertain, I believe exactly the opposite.

That doesn't come through.

Like so many on this board have pointed out to you in the past, it is you who hides on the political sidelines, perpetually acting out of your mythology of supremacy based on an untested philosophy.

"Untested"? Hardly. It's widely agreed-upon that free people live better than those who are not; I merely propose that we let freedom flower to its fullest, and leave behind the ideologies and people who deride genuine freedom for stupid (if not dangerous) reasons.

Suffice to say that Statisms of various sorts have been tried, and all have failed, to a greater or lesser degree, either painfully and violently or via just plain decay.

[yavoon]

I think the Right should also realize that the whole foundation of our Republic depends upon some extremely "liberal" ideas. In fact, the ideas our government is based on are downright revolutionary.

the ideas are liberal, its just that liberals dont believe in them.

Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political value.[1] Liberalism has its roots in the Western Age of Enlightenment, but the term now encompasses a diversity of political thought.
Broadly speaking, liberalism emphasizes individual rights. It seeks a society characterized by freedom of thought for individuals, limitations on power, especially of government and religion, the rule of law, free public education, the free exchange of ideas, a market economy that supports relatively free private enterprise, and a transparent system of government in which the rights of all citizens are protected.[2] In modern society, liberals favor a liberal democracy with open and fair elections, where all citizens have equal rights by law and an equal opportunity to succeed.[3]


its unfortunate IMO that liberalism has been hijacked, I'd call myself a liberal if ppl didnt keep assuming it means I believed in socialism or relativism. but alas such is the way w/ words.

[SoCalBronco]

Well, you might have a point in that my wording sounds kinda preachy - sorry for that. But I do know this subject. There are a great many subjects I freely profess no special knowledge of, but I do know this topic pretty well.

And the odd liberal interjections I make are certainly not hidden ("commander in chimp," "sold his soul," are pretty obvious). But the building blocks I've described are apolitical.

I asked SoCalBronco, another lawyer and I think a Republican, to review my posts for accuracy. He should weigh in today or Thursday.


___

*EDIT* enjolras and Rohirrim also seem to have excellent knowledge here - guys, let me and Barry know if I've strayed from reality here.

BroncoBuff is on the mark, he has indeed provided an excellent background and history to this area of the law, it is much more complicated than merely reading the text of the constitution. Alot of this stuff comes down to beliefs on the scope of government (as BroncoBuff noted, this is especially important in the area of the Commerce Clause, as federal power expanded greatly in the 1930s with West Coast Hotels v. Parrish until the year 2000, when the more conservative Supreme Court began to tighten the reins, big time) and also on how you believe the constitution should be interpreted. Their are alot of folks who look to social policy, fairness, justice, modern norms etc. There are others who look at text, constitutional structure, original intent, etc. This is all at the forefront of the debate on a number of aspects of constitutional law, most prominently in the area of Subtantive Due Process. Im glad BroncoBuff brought up Griswold and some of its progeny and touched on this area. All of those theories of interpretation and your theory of the scope of government is at the very heart of this debate about substantive due process rights, it all goes to that issue of what rights should be fundamental and therefore recieve the greatest amount of protection in the form of strict scrutiny when those rights are infringed on. I'm not a big believer in Griswold, Roe, and the jurisprudence in this area that has developed in the last 40,50 years or so. I generally fall into the group of folks who think that these fundamental rights should be very small, and thats because of the concept of the constitutional supermajority, which is at the heart of constitutional theory, and why constitutional law trumps ordinary law. This is what makes us different than some other democracies, in that we don't just have our regular law, but we have our fundamental law too. We have majorities that we create in the legislature when we pass laws, but the idea of the supermajority is that we have law (ordinary statutes, ordinances etc.) and then we have fundamental law (constitutional rights)...Kurt Lash of Loyola Law School (my alma mater) has a great lecture on this, we have legislative acts that are the product of the majority, but then we have the supermajority, those are things that we are in extreme agreement about re: its importance and we don't want the legislature to touch it, its off limits, its subject to "strict scrutiny" when infringed on, its enshrined as a special constitutional right above and beyond mere political discourse...and there is a method of how we go about enshrining those fundamental things, its very difficult, the supermajority concept is reflected in the traditional aspect of creation of constitutional rights: the difficulty in passing a formal constitutional amendment. You need to really show that there is an extreme degree of agreement about its importance to take it out of the political discourse completely, in the sense of taking it away from the legislative branch. You must get a much greater margin than a mere majority in the house and senate, its 2/3 and then 3/4 of the states, and this process takes several years, so you have to show this type of agreement over time, over and above the yearly ebb and flow of political opinion, see the Equal Rights Amendment in the 70s and 80s, if u can overcome all these hurdles, then that right should be enshrined as something superior to the will of the mere majority. I think this idea is really important when we are talking about Courts carving out fundamental rights on their own, they should tread lightly on taking something away from the legislative bodies and the majorities who make law (by applying strict scrutiny). I don't think it is legitimate to create a substantive due process fundamental right for any reason other than that of the supermajority. I've never bought the whole pnumbra's and emanations of Justice Douglas, or the idea that a right should be enshrined as a fundamental substantive due process right because it would be just or fair to do so as a matter of social policy, thats not the issue, the whole issue is the supermajority, thats why things are taken out of political discourse, if you are going to take it away from the majority, it better have supermajority support. The Courts have struggled for about 50 years with the question of what is the appropriate test in the area of fundamental rights. There's alot of different ideas, the foregoing is just one of them, albeit its the one I find the most attractive and legitimate. For awhile, they actually used a method of analysis that I think advanced the supermajority concept. In Planned Parenthood v. Casey (not the whole Court, but in C.J. Rehnquist's opinion) and in Moore v. East Cleveland, they in fact framed the analysis in the sense that something would be granted the special status of a fundamental right only if it was "deeply rooted in the legal tradition and history", in other words, whether the right was so sacred that it was virtually uniformly protected over time across all of our jurisdictions. That would tend to show a constitutional supermajority. On many of the topics that the Court has discussed since Griswold, most notably abortion in Roe, it cant be said that there is a constitutional supermajority, or that each of these rights has enjoyed an almost unbroken tradition of sacredness in our legal history (perhaps an unbroken string/deeply rooted right over the entirety of the nation's history is not reflective on whether a supermajority currently exists, but certainly the inquiry needs to be at least throughout the recent generations/decades of the nation's legal history) throughout the country. On the contrary, these are very divisive issues, abortion, gays etc. and so I think the Court should be leaving them up to the majorities (legislatures) to decide. The Court needs to be extremely conservative (not in the politically conservative sense, but in terms of a high degree of restraint and restrictiveness) in the expansion of fundamental rights for this very reason.

I get frustrated when people say, well i agree with Roe because its a good idea for women to have the right to choose, its the right thing to do, or that we should have reproductive freedom, etc......its NOT ABOUT WHETHER ITS A GOOD IDEA OR WHETHER IT SHOULD BE DONE, its about whether we have a constitutional supermajority to enshrine these rights and keep them completely out of political discourse.

Sorry for rambling.

[BroncoBuff]

Poor Elsie Parrish .... she just wanted to push elevator buttons all day for sub-standard wages. Why should the freaking government tell her she can't? Uhh


we have legislative acts that are the product of the majority, but then we have the supermajority, those are things that we are in extreme agreement about re: its importance and we don't want the legislature to touch it, its off limits, its subject to "strict scrutiny" when infringed on, its enshrined as a special constitutional right above and beyond mere political discourse...and there is a method of how we go about enshrining those fundamental things, its very difficult, the supermajority concept is reflected in the traditional aspect of creation of constitutional rights: the difficulty in passing a formal constitutional amendment.

Great stuff, man ... I never thought of the distinction between Constitution and legislation that way.

There are many non-enumerated rights (those not specifically spelled out in the Constitution) that well-settled SCOTUS precedent has found to be fundamental. Marriage, for example - Skinner v. Oklahoma (1942), Loving v. Virginia (1966). But then again, marriage is definitely a right "so sacred that it was virtually uniformly protected over time across all of our jurisdictions."

[Rohirrim]

I like that supermajority differentiation too. Kind of clarifies the picture. Personally, I would put privacy in that category. I imagine most Americans would agree with that; the idea that there is an implicit right to privacy in the various amendments of the BOR. However, I would not try to jimmy the right to abortion under that penumbra. That was a reach.

The chief issue I have with abortion is the simple fact that it is not a woman making a medical decision for herself, which an implicit right to privacy would, and should protect. It's a woman making a life or death decision about another living being. There certainly is no supermajority opinion about the nature of the rights of that unborn child. I agree that Roe v. Wade should not have a place in the supermajority of rights. We, as a society, are not even close to agreeing on what abortion represents. One extreme sees it as murder. The other extreme sees it as no different than having a botox injection. We should save the Constitution for rights that society has already well decided over generations of argument. Roe should be stricken out, IMHO.

[alkemical]

why can't states set abortion policy on their own?

[enjolras]

I like that supermajority differentiation too. Kind of clarifies the picture. Personally, I would put privacy in that category. I imagine most Americans would agree with that; the idea that there is an implicit right to privacy in the various amendments of the BOR.

I would agree. I would actually like to see a true privacy amendment to the constitution (instead we get flag burning, but I digress). The EU has clear (and strict) privacy protections, and I think we as Americans should expect the same. A constitutional right would make it much more difficult for government to maneuver around privacy in establishing draconian laws that violate it.

However, I would not try to jimmy the right to abortion under that penumbra. That was a reach.

I disagree.

The first question the decision dealt with is "when does life begin?" The court (wisely) decided that it was out of the power of the court to establish that since it is fundamentally a philosophical question. They turned to common law and found a traditional answer (sometime after the first trimester) and adopted that as a compromise.

That is the key point, the court effectively said 'in the first trimester we can not be sure that we are dealing with human life, and as such we can not protect a fetus on constitutional grounds'. At that point the right to privacy becomes absolutely paramount. If you are not dealing with a human life, what ARE you dealing with? The court (I believe logically) ruled that at this point you are dealing with what is fundamentally a medical issue. Previous courts had established a penumbra right to privacy around medical decision making, and Roe v. Wade simply interpreted pregnancy to include that.

If the court had found a fetus to be human life, then the decision is likely to be quite different. Even if it somehow made it past the 14th amendment, the right to privacy would surely not trump the right to life.

[enjolras]

why can't states set abortion policy on their own?

Because of the constitutions supremacy clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

When the Supreme Court ruled that abortion was constitutionally protected (see my post above), any state that attempts to abolish is attempting to supress a constitutionally protected right. That is forbidden by the supremacy clause.

[Rohirrim]

I would agree. I would actually like to see a true privacy amendment to the constitution (instead we get flag burning, but I digress). The EU has clear (and strict) privacy protections, and I think we as Americans should expect the same. A constitutional right would make it much more difficult for government to maneuver around privacy in establishing draconian laws that violate it.



I disagree.

The first question the decision dealt with is "when does life begin?" The court (wisely) decided that it was out of the power of the court to establish that since it is fundamentally a philosophical question. They turned to common law and found a traditional answer (sometime after the first trimester) and adopted that as a compromise.

That is the key point, the court effectively said 'in the first trimester we can not be sure that we are dealing with human life, and as such we can not protect a fetus on constitutional grounds'. At that point the right to privacy becomes absolutely paramount. If you are not dealing with a human life, what ARE you dealing with? The court (I believe logically) ruled that at this point you are dealing with what is fundamentally a medical issue. Previous courts had established a penumbra right to privacy around medical decision making, and Roe v. Wade simply interpreted pregnancy to include that.

If the court had found a fetus to be human life, then the decision is likely to be quite different. Even if it somehow made it past the 14th amendment, the right to privacy would surely not trump the right to life.

I believe that decision is operating on a logical fallacy. They say they cannot rule on the question of "When does life begin," but then they effectively rule as if they have answered that question. IMO, the most legitimate answer would have been, "We don't know if we are dealing with human life or not, therefore, we shall err on the side of caution and make no ruling at all."
Given the choice they made, how would they answer this question: At what time of day on the last day of the proscribed semester does the fetus cease to be a medical issue and become a separate human being endowed with all the protections of the Constitution? A fetus is not an appendix.

My argument is that they should never have taken the case to begin with. They should have left it for the people to decide, however long that takes.

[enjolras]

My argument is that they should never have taken the case to begin with. They should have left it for the people to decide, however long that takes.

At the end of the day isn't that the role of the Judiciary tho? To provide a check that ensures the rights of the minority are respected in the face of the majority? If everything could be left to simple majority rule, then you don't even need a constitution. You simply ask the majority what they think..

That's the crux of the matter here. You have a majority imposing a restriction (you CAN'T have an abortion) on a minority. By making no decision at all the court is simply saying 'well, when it's hard for us to arrive at a conclusion it's then ok for the majority to regulate the minority'. No ruling IS a ruling of sorts (just the court refusing to hear a case, in practical terms, is effectively upholding the lower courts ruling).

(position statement: I'm against abortion, but agree with the Roe V. Wade decision precisely because of what the decision states).

[W*GS]

I agree with Ro - the decision should be made by the people or the legislative branch, not the judicial branch.

[Rohirrim]

At the end of the day isn't that the role of the Judiciary tho? To provide a check that ensures the rights of the minority are respected in the face of the majority? If everything could be left to simple majority rule, then you don't even need a constitution. You simply ask the majority what they think..

That's the crux of the matter here. You have a majority imposing a restriction (you CAN'T have an abortion) on a minority. By making no decision at all the court is simply saying 'well, when it's hard for us to arrive at a conclusion it's then ok for the majority to regulate the minority'. No ruling IS a ruling of sorts (just the court refusing to hear a case, in practical terms, is effectively upholding the lower courts ruling).

(position statement: I'm against abortion, but agree with the Roe V. Wade decision precisely because of what the decision states).

Once the SCOTUS rules, it ends the discussion. That's the harm that Roe did. The ruling was premature. There is still a very large part of the population that is opposed to this and an even greater part that is either uncomfortable or undecided. That's the messiness of democracy. The issue should have been left among the people, and the states, to hash out over time. Had the Court refused to hear Roe, the restrictive legislation in the states would have been under relentless attack (depending on the state) until, state by state, the people resolved it.

BTW, to some extent, isn't democracy the system of majority rules? It seems to me that it does, with exceptions noted in the BOR. We have outlawed drug usage (which I oppose). We have outlawed pedophilia (which I support). We make all sorts of decisions based on community values and the majority ethos. What Roe did was short circuit the process and a great many voices in the community were effectively silenced. The SCOTUS should be the place where settled law is inscribed, not where the discussion is cut off.

[BroncoInferno]

I agree with Ro - the decision should be made by the people or the legislative branch, not the judicial branch.

What if the people (in other words, the majority) wish to suppress the rights of minority groups? Should there not be a branch of gov't that protects minorities from the "tyranny of the majority?" Isn't that precisely why we have judges who don't have to answer to the voters--so that fairness and not majority opinion will lead their verdicts?

[Rohirrim]

What if the people (in other words, the majority) wish to suppress the rights of minority groups? Should there not be a branch of gov't that protects minorities from the "tyranny of the majority?" Isn't that precisely why we have judges who don't have to answer to the voters--so that fairness and not majority opinion will lead their verdicts?

The rights of the people (minority or not) are spelled out in the BOR and cannot be infringed. That's why the founders included those amendments, to forestall the dictatorship of the majority. The question is, should those who desire to have an abortion be considered a protected class? The SCOTUS used the concept of a penumbra of the BOR and upon that they constructed a right to privacy that they then used to create protection for those who want an abortion. To me, that's a real stretch of the imagination.

[BroncoInferno]

The rights of the people (minority or not) are spelled out in the BOR and cannot be infringed. That's why the founders included those amendments, to forestall the dictatorship of the majority. The question is, should those who desire to have an abortion be considered a protected class? The SCOTUS used the concept of a penumbra of the BOR and upon that they constructed a right to privacy that they then used to create protection for those who want an abortion. To me, that's a real stretch of the imagination.

Well, think of it this way:

It's doubtful we will ever get closer to answering the question "when does life begin?" than we already are. We know most of the pertinent facts about what happens during the variant stages of development, yet there still remains differing opinions regarding how to interpret that info in terms of the status of a fetus. My belief is, in this particular case, since there is no likely resolution to question, you err on the side of freedom of choice. If there is a God who considers abortion murder, then the individuals who recieve and/or participate/enable abortions will have to answer for it in the Great Beyond.

[Rohirrim]

Well, think of it this way:

It's doubtful we will ever get closer to answering the question "when does life begin?" than we already are. We know most of the pertinent facts about what happens during the variant stages of development, yet there still remains differing opinions regarding how to interpret that info in terms of the status of a fetus. My belief is, in this particular case, since there is no likely resolution to question, you err on the side of freedom of choice. If there is a God who considers abortion murder, then the individuals who recieve and/or participate/enable abortions will have to answer for it in the Great Beyond.

In the words of some old philosopher, "Since I can't know what God thinks, I must think for myself." Wait a minute! That was me. ;D My opinion is that since we don't know when life begins, we should assume that the fetus is a living soul and deserves all the freedoms and protections of the BOR. In other words, you err on the side of the freedom to live.

[BroncoInferno]

In the words of some old philosopher, "Since I can't know what God thinks, I must think for myself." Wait a minute! That was me. ;D

Yep, very true.

My opinion is that since we don't know when life begins, we should assume that the fetus is a living soul and deserves all the freedoms and protections of the BOR. In other words, you err on the side of the freedom to live.

I guess it's just a difference of opinion. I feel like when there is a stalemate in debate with little hope of reaching a solid consensus, you leave it to individuals to decide for themselves.

[BroncoBuff]

1st: Why does the FCC restrict content on radio and TV and fine those responsible for violations of its regulations? What does "no law" mean?
The SCOTUS has established "time, place and manner" restrictions on free speech. In a strip club case from Renton, WA - about five miles from me - they ruled that speech is free, but certain speech may be restricted in the "time" and the "place" it may be exercised. For example, over-air TV can be seen by kids, so certain content is "time" restricted. BUt you can get hard core on HBO and the "f" word on Comedy Central late at night. And of course, adults can get VHS/DVD with anything they want. "Place" restrictions mean, for example, strip clubs can't be next to schools.

IMO, the "time, place, manner" stuff is generally pretty reasonable.

2nd: Why is the RKBA contingent by State approval? (?)

4th: How come our phone calls can be tapped without our knowledge, the only restriction being an appeal to a secret court?
C'mon, W*GS, people are SCREAMING that this practice is unconstitutional. You're hearing the debate, I'm sure. I agree with you, it's totally wrong ... but 9/11 (and Bush) have dramatically changed the landscape.

5th: How come one can be taken to trial, for the same incident, on federal charges if one has been cleared of other charges at lower levels? I'm thinking here of the feds stepping in with "violation of civil rights" cases when some folks aren't happy when the defendant has been acquitted by a state. Also, the evisceration of property rights - Kelso v. something, IIRC.
You understand the difference between CIVIL and CRIMINAL, I'm sure ... that's a misunderstanding people confuse with double jeopardy. As far as federal vs. state criminal charges, the truth is, they don't overlap much. A good example is the Rodney King cops. They were acquiteed in state court of assault, etc.... but in federal court, they were convicted of "Violating Civil Rights Under Color of Authority." It's actually a completely different crime.

NOTE: State courts are "general jurisdiction," which means they can try ANY kind of case, even federal crimes and issues. But the opposite is not true. Federal courts do not prosecute state offenses. For example, the feds don't have plain "assault" or "murder." Thei crimes are different.


The "Kelso" case - is that the eminent domain case from last year? That was an earth-shaker, W*GS, you're not the only one p-o'd there. I haven't read it. I was asking SoCal about it a few months ago, but he hadn't either. He might know more now.

8th: The continued use of capital punishment.
I am 100% against capital punishment. However, it IS Constitutional, at least from an 8th Amendment "cruel and unusual" standpoint. The reason why is simple: The Sixth Amendment states in part, "No person shall be held to answer for a capital...crime." That means the Founding Fathers contemplated that there was such a thing as a capital crime, and therefore, it must be okay in some cases.

Now, there are attacks on capital punishment other thatn the Eighth Amendment - that it's unfairly used for example, like what that courageous Illinios governor said when he commuted all of death row a few years ago.


9th: Basically, that rights not mentioned in the USC are ignored.
Yeah, well ... in Latin they say "Expresio unius est exclusio alterus," which roughly means: just because you say "I like the color red," that doesn't mean you DIS-like blue. I never saw the Ninth discussed much. Maybe SoCal or Rohirrim knows. In what circumsatances do you think the Ninth is abused?



You have an excellent citizen understanding of this stuff, W*GS ... seriously. You raised good questions and issues.

[W*GS]

You have an excellent citizen understanding of this stuff, W*GS ... seriously. You raised good questions and issues.

Thanks.

I do have an issue with "time, place, and manner" regarding free speech, especially as it regards television and radio. I tend to be an absolutist - if you don't want to hear "mother****er" on TV at 7pm, change the channel.

In regards to "2nd: Why is the RKBA contingent by State approval?", I'm talking about the regulations regarding background checks and the ongoing attempts to regulate private sellers, as well as restricting the number of FFLs (Federal Firearms Licenses) via increased fees. There's also the issues of restrictions on the number of firearms one may purchase at one time. These are mostly state and local restrictions, but it's pretty clear to me that "shall not be infringed" means just that. If the SCOTUS can contort itself into finding a "right" to an abortion, and yet allow multiple statutes that unreasonably restrict the RKBA pass, there's something seriously amiss.

And yes, while Bush's wiretapping is probably clearly unconstitutional, the mere existence of the secret FISA court that decides the issues around wiretapping is highly troubling from a 4th amendment standpoint. Since the FISA court is secret, we have no idea what its reasoning is when it allows such wiretaps - for all we know, blatant disregard of the protections against unreasonable searches has been going on for years.

As for double jeopardy, it continues to strike me as being under threat - the State using its multiple levels to "get" a defendant by whatever means they can. Didn't get the Rodney King cops at the state level - heck, we'll try the federal level, and get them there. Throwing on charge after charge, at the state and federal level, until one sticks, is skanky to me.

In regards to "Kelso", that was so blatant a misinterpretation of the 5th, I'm stunned that the SCOTUS had the audacity to attempt it. Making the State richer by increasing the tax take via abuse of eminent domain is just plain scummy. That's a bald-faced power grab - exactly the sort of thing the SCOTUS is supposed to protect us against, and they're completely in the wrong on that case.

I suspect capital punishment will eventually be abolished - but with little help from the SCOTUS.

Lastly, with the 9th, the issue is one that the anti-Federalists raised in even having a BoR - that those listed would get special consideration, and others would be ignored or held in lesser regard. As it so happens, they were right on.

[alkemical]

wags,

i never expected you to use the word "skanky".

you suprise me sometimes....

lol

[BroncoBuff]

wags,

i never expected you to use the word "skanky".

you suprise me sometimes....

lol

I agree completely. is this the same W*GS we came to know and .... well, er...

[BroncoBuff]

Thanks.

I do have an issue with "time, place, and manner" regarding free speech, especially as it regards television and radio. I tend to be an absolutist - if you don't want to hear "mother****er" on TV at 7pm, change the channel.

In regards to "2nd: Why is the RKBA contingent by State approval?", I'm talking about the regulations regarding background checks and the ongoing attempts to regulate private sellers, as well as restricting the number of FFLs (Federal Firearms Licenses) via increased fees. There's also the issues of restrictions on the number of firearms one may purchase at one time. These are mostly state and local restrictions, but it's pretty clear to me that "shall not be infringed" means just that. If the SCOTUS can contort itself into finding a "right" to an abortion, and yet allow multiple statutes that unreasonably restrict the RKBA pass, there's something seriously amiss.

And yes, while Bush's wiretapping is probably clearly unconstitutional, the mere existence of the secret FISA court that decides the issues around wiretapping is highly troubling from a 4th amendment standpoint. Since the FISA court is secret, we have no idea what its reasoning is when it allows such wiretaps - for all we know, blatant disregard of the protections against unreasonable searches has been going on for years.

As for double jeopardy, it continues to strike me as being under threat - the State using its multiple levels to "get" a defendant by whatever means they can. Didn't get the Rodney King cops at the state level - heck, we'll try the federal level, and get them there. Throwing on charge after charge, at the state and federal level, until one sticks, is skanky to me.

In regards to "Kelso", that was so blatant a misinterpretation of the 5th, I'm stunned that the SCOTUS had the audacity to attempt it. Making the State richer by increasing the tax take via abuse of eminent domain is just plain scummy. That's a bald-faced power grab - exactly the sort of thing the SCOTUS is supposed to protect us against, and they're completely in the wrong on that case.

I suspect capital punishment will eventually be abolished - but with little help from the SCOTUS.

Lastly, with the 9th, the issue is one that the anti-Federalists raised in even having a BoR - that those listed would get special consideration, and others would be ignored or held in lesser regard. As it so happens, they were right on.

I gotta hand it to you again, W*GS, you're pressing the envelope in "all the right places," as it were. You are raising difficult issues, all of which are subject to highly visible and brisk debates in every corner of the nation. My 'expertise' is already laid out here, but I can give you some of my opinions on the issues you raised:


FIRST AMENDMENT: I alreay mentioned I think that "time, place, manner" restrictions are largely reasonable, and the "V-Chip" is pretty easy for parents who wish to "turn the channel," as you put it. All TV's have them now, you can block any chanels you like. Direct TV allows you to put max hours on each channel, and block only during certain times of day.

But I also believe that - anything you hide from kids just makes them more curious, and put whatever's hidden on a pedestal. If you block certain TV stations, kids are gonna work and wait and find a way to see those channels, and when they finally do, they're pre-disposed to think the stuff is "cool." That's a real problem, imo.


SECOND AMENDMENT: You can buy guns from pawn shops and private partys, right? I don't know much about sales license restrictions, but every pawn shop I've ever been in sells guns. The problem with the Second is it's different from the rest in two important ways: 1) It specifies WHY the right is given, and 2) it does not say "Congress shall make no law," it merely says "shall not be infringed." Lemme address them one at a time:
"A well-regulated militia, being necessary to preserve a free nation" ... Because the Framers stated WHY they gave this right, Americans are free to debate whether that "why" still exists. Most believe it does not. Up until three years ago, I would have agreed. Still, the reality is that the United States is under no danger of losing it's sovereignty, freedom, or in fact of being attacked at all - other than by non-affiliated terrorists.
" Shall not be infringed" ... this is different than "make no law." W*GS, do you believe that a newly-parolled felon should have the right to buy a gun w/o ID or any waiting period? I doubt it. So then, there are some infringements even you agree with. But I agree with your 'Roe' comparison, the Roe decision required far more contorted reasoning.



FOURTH AMENDMENT: The "secret FISA Court" may sound bad, but remember: it's still a court. And that means it's a separate branch of government that operates - ideally - as a check on the other (FBI is executive actually). The FBI might think there are sufficient circumstances to permit undercover surveillance, but the judge gets the final word. And without undercover - especially in Foreign Surveillance (the FS in FISA) - we could easily miss out on their plans. Not just terrorists, but Russians and even ISRAEL was caught spying through FISA. As long as the FISA Court is wellappointed and exercises oversight, I personally have no problem.


FIFTH AMENDMENT: I don't know what more to say about double jeaopardy, other than the crimes charged cannot be exactly the same. As far as eminent domain, I hear you. When "public use" is defined as "look what a great mall this private developer is gonna build" ... now THAT'S a slippery slope. Of course, you do know that the 'victims' are usually paid above market valuie, right? Still, this is very troubling to me. I've gotta read more on it.


EIGHTH AMENDMENT: The only way to attack this is by attacking HOW IT'S METED OUT, because capital punishment itself is Constitutional. The Court abolished it on Eighth grounds for a few years in the 70s, but it was rightly re-instituted for the reasons I laid out above - and I forgot another reference to it in the Constritution: "twice put in jeopardy of life" ... that's another mention in the Fifth. So again, even though I'm against it, it's not "cruel and unusual," from a Constitutional standpoint. But attack it like Governor Jim Ryan did in Illinois - he commuted all of death row because the sentences were too often wrongly or mistakenly given.


NINTH AMENDMENT: I still don't know where the use or non-use of this right trouibles you, and I admit I know very little about it, or don't recall what I know. Give me some details, or maybe SoCal can expand on it.



I think your arguments here are excellent - IF- we lived in a perfect world. In a perfect world, everybody would own three guns purchased without waiting periods - but nobody would ever be accidentally shot, purposely shot, or robbed at gunpoint. In a perfect world, kids would not be exposed to lewd sex or offensive language, or if they were, it would not harm them.

The world we live in - the system of government we live in - requires debate and compromise. Try to be a bit flexible. Lots of your issues do not involve eliminating rights, but merely placing conditions upon their exercise, in order that other segments of society are not offended or harmed. Now what's so bad about that?

[W*GS]

FIRST AMENDMENT:I alreay mentioned I think that "time, place, manner" restrictions are largely reasonable, and the "V-Chip" is pretty easy for parents who wish to "turn the channel," as you put it. All TV's have them now, you can block any chanels you like. Direct TV allows you to put max hours on each channel, and block only during certain times of day.

I have no problem with parents restricting what and how much TV their kids see - in fact, that's their duty. I do have a problem with the FCC regulating content. There's a huge difference between Dad saying "No Cinemax", and the government censoring. The latter is clearly unconstitutional.

SECOND AMENDMENT: You can buy guns from pawn shops and private partys, right?

Pawn shops that sell firearms must have FFLs, private parties do not - however, there has been pressure in the past to require even private party sales to meet federal requirements. Gun shows often feature private party sales, and there was a movement afoot to require all transactions at gun shows to submit to federal approval.

Still, the reality is that the United States is under no danger of losing it's sovereignty, freedom, or in fact of being attacked at all - other than by non-affiliated terrorists.

The enemies of free Americans aren't just foreigners or terrorists. Some could well be saying "I'm from the government, and I'm here to help you."

]" Shall not be infringed" ... this is different than "make no law."

What specifically are the differences?

W*GS, do you believe that a newly-parolled felon should have the right to buy a gun w/o ID or any waiting period?

He'll get a gun one or another. The sad irony is that laws are obeyed by the law-abiding.

As long as the FISA Court is wellappointed and exercises oversight, I personally have no problem.

How do we know its members or its oversight at all, since it's secret? Like I said, for all we are allowed to know, our 4th Amendment protections have been grievously violated for a long time. Relying on a court is weak.

I think your arguments here are excellent - IF- we lived in a perfect world. In a perfect world, everybody would own three guns purchased without waiting periods - but nobody would ever be accidentally shot, purposely shot, or robbed at gunpoint.

Indeed, the world isn't perfect, which is why (among many other things) we have the RKBA. The police aren't legally required to protect us from criminals - in the end, the only ones who can protect us are ourselves. Given how extraordinarily well concealed carry laws have worked, and that criminals fear most a citizen who's willing and able to protect themselves, and that tyrants always disarm their subjects as a first order of business, the RKBA is absolutely vital to the preservation of our rights.

In a perfect world, kids would not be exposed to lewd sex or offensive language, or if they were, it would not harm them.

I concur - but the responsibility for protecting children from "obscenity" lies with the parents, not the State. Period.

The world we live in - the system of government we live in - requires debate and compromise. Try to be a bit flexible.

On some things, I will not and cannot be "flexible". The old saying "Give an inch, they'll take a mile" applies quite well.

Lots of your issues do not involve eliminating rights, but merely placing conditions upon their exercise, in order that other segments of society are not offended or harmed. Now what's so bad about that?

There isn't a right not to be offended. As for "harm", that's a lot more vague and contentious.

The bigger problem is that the State listens more closely to those who wish it to have more power to enact their petty desires, given the State's almost-organic desire for more reach and ability to interfere in our lives. Put succinctly, the State will always pay more attention to those who cry "There oughta be a law!" than those of us who believe otherwise. Since the world isn't in short supply of busybodies and bossy types, and their concerns will always get more attention from the State, we get into the messes we're in.

[gunns]

Yeah, no one comment on the Constitution until you go through broncobuff, the self-appointed expert. Sure, he comes off as an arrogant ass, but he knows his Constitution and will post his resume for you. Plus, as a typical lefty would do, they try to mangle what the Constitution is about and it's them that know what the founders meant, so don't go by the written word, go by what the founders were thinking, which they only know of course since they are the true "scholars." :rofl:

A perfect example of this is how Bush "interprets" the Constitution and mangles it.

[DB-Freak]

the ideas are liberal, its just that liberals dont believe in them.

Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political value.[1] Liberalism has its roots in the Western Age of Enlightenment, but the term now encompasses a diversity of political thought.
Broadly speaking, liberalism emphasizes individual rights. It seeks a society characterized by freedom of thought for individuals, limitations on power, especially of government and religion, the rule of law, free public education, the free exchange of ideas, a market economy that supports relatively free private enterprise, and a transparent system of government in which the rights of all citizens are protected.[2] In modern society, liberals favor a liberal democracy with open and fair elections, where all citizens have equal rights by law and an equal opportunity to succeed.[3]


its unfortunate IMO that liberalism has been hijacked, I'd call myself a liberal if ppl didnt keep assuming it means I believed in socialism or relativism. but alas such is the way w/ words.

Call yourself a classical liberal.

[yavoon]

Call yourself a classical liberal.

that'd just get me blank stares:).